• Will and property

Dear Sir / Madam,
Am looking for a property which is 20 years old and is not inherited property from his descendant and details below
The deceased person has 2 wives
1.	Legal heirs from First wife (Dead)
 a.	4 Women
 b.	1 Man (Dead)
2.	Legal heirs from 2nd wife (Alive)
 a.	2 Women (1 dead)
 b.	4 Man (1 dead and there is no heirs for him)
 c.	1 Boy (Minor)
3.	Deceased person wrote a will in 2006 at the age of 65 and died in 2011
4.	From the Will
 a. Legal heirs from First wife 
 i.	4 Women (No inheritance as he settled them by marriage)
 ii.	1 Man (He is dead and no inheritance for his legal heirs)
 b. Legal heirs from 2nd wife
 i.	2 Women (they are not mentioned in will anywhere)
 ii.	5 Man (all inheritance to them only)

Kindly advise on below queries and your valuable advise further
1.	First wife son is dead, on the will, there is no inheritance for his legal heirs which is typed in typewriter machine between the two printed lines, Actual will was computer printed one.
a.	How do we check the integrity of the will, when is the amendment was made without any signature or was it made before registration?
2.	Second wife’ legal heir female names are not at all mentioned in the Will
a.	Is this correct or any legal issues are there or can we get their sign at the time of sale deed registration
3.	The will is not reflected in EC - Is this correct or any mitigation
4.	At presently the property under the mortgage with third person and its registered
5.	Is this mandatory to get all dead person death certificates
6.	At the time of sale deed, who are signatures are required
7. Shall we continue for reg or drop this if any legal issues

Kindly revert
Asked 3 years ago in Property Law
Religion: Christian

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10 Answers

There are high chances of this sale being challenged unless the Will is duly proved 

So insist for a probate of the Will 

Or else you will have to get the signatures of all the legal heirs from both the wives and also insist for an heirship certificate to ascertain that apart from these there are no other legal heirs of the deceased 

Yusuf Rampurawala
Advocate, Mumbai
7901 Answers
79 Consultations

Dear Client,

as the property is not inherited one, we assume it as the self acquired property of the deceased man. all legal heirs are eligible to get the self acquired property of the parents if they die intestate. but here, it is not the case, will is there. registered/ unregistered will, it should be executed accordingly. so, in the sale deed, signatures of only the male children of the second wife are needed as they are the persons who will get the property as per will. the remaining heirs may contest it if there is no signature on it. A will must be in writing and duly signed by the testator. This should be done in the presence of two witnesses. Also, a will has to be dated.

Anik Miu
Advocate, Bangalore
11020 Answers
125 Consultations

Insist that beneficiaries apply for probate of will 

 

2) probate is judicial proof that will is genuine 

 

3) notice would be issued to all legal heirs 

 

4) if any objections are received

it would get converted into testamentary suit 

 

5) testator signature should be on each page if the will 

 

6) reasons should have been mentioned in will for dis inheriting daughters 

 

7) death certificates of all legal heirs should be enclosed to testamentary petition for probate 

Ajay Sethi
Advocate, Mumbai
99836 Answers
8148 Consultations

  1. Property is not ancestral as the same is not inherited from ancestors.
  2. The deceased owner has two wives and first wife is dead.
  3. There are four females from first wife.
  4. There is one female, four male and one minor from second wife.
  5. 11 legal family members are alive including wife.
  6. Property is bequeathed by deceased only on five males from second wife.

Answers:

  1. First wife’s son is disinherited trough typed text between two lines of computer typed will. (If will is registered, there is  no problem with such additions. Corrections/additions are to signed only in un-registered  will)
  2. If the property is self-acquired not mentioning of any family members means that they are automatically disinherited. (No problem can be created by them)
  3. They cannot create any problem. (but it is better to obtain their written consent).
  4. Will cannot be reflected in EC.
  5.  Execute a tripartite sale agreement with family members mentioned in the will, the mortgagee and you. Mention that the mortgagors will redeem the property from mortgagee and sell it to you. Enter into escrow agreement involving bank.
  6. In case of self acquired property only the signatures of bequeathees are required. It is  not necessary to obtain death certificate of all deceased family members.
  7. All beneficiaries/ bequeathees should execute registered sale deed and all family members should give their consent through declaration.
  8. Proceed with deal as advised. If the will is objected by any member, ask them to obtain probate of will.
  9. You have no mentioned location of property since all wills executed for properties in presidency towns are required to compulsorily probated.  

Ravi Shinde
Advocate, Hyderabad
5134 Answers
42 Consultations

No probate is necessary for Christian and Muslim Wills.

However the religion of the testator is not known, hence in the absence of probate of Will the consistency or enforceability of the Will cannot be determined. 

Whenever there is a proof of testamentary succession,  the genuineness of the instrument through the succession has been described has to be examined/scrutinised properly, which will include the clear and marketable title the testator towrds the property bequeathed through the Will. 

After that, to enforce the Will the beneficiaries have to get the property revenue or mutation records transferred to their names from that of the testator by submitting an application before the revenue department.

In the revenue department it would be pertinent to submit NOC from other legal heirs, hence the prospective buyer may insist the sellers to get the property transferred to their names first before executing the registered sale deed. 

This process would clarify and confirm the other issues that have been raised by you. 

Therefore it is always advisable to obtain a proper legal opinion from an experienced local lawyer before venturing into the proposed purchase of immovable property.

T Kalaiselvan
Advocate, Vellore
90038 Answers
2498 Consultations

You need to challenge the will in form of testamentary suit in the said matter

Prashant Nayak
Advocate, Mumbai
34553 Answers
249 Consultations

Only if title is s clear and property is in name of lehal heirs rhe legal registration can be done

Prashant Nayak
Advocate, Mumbai
34553 Answers
249 Consultations

Ask seller to apply for probate of will 

 

2) under will number of legal heirs have not been given any share in property 

 

3) probate is judicial proof that will is genuine 

 

4) ask seller to carry out mutation of property in name of beneficiaries under will 

Ajay Sethi
Advocate, Mumbai
99836 Answers
8148 Consultations

Dear Client,

if the legal heirs as per the will are ready to issue the sale deed, then you may proceed with it. if you think the remaining people can make any problem in this case, then consult a civil lawyer in this case.

Anik Miu
Advocate, Bangalore
11020 Answers
125 Consultations

The document writer is not an authority.

He is not the lawyer to speak about the law involved in intestate succession or law on legal heirs.

It would be proper for you to obtain a proper legal opinion before you purchase the property and should proceed only if recommended by the lawyer scrutinising the papers. 

 

T Kalaiselvan
Advocate, Vellore
90038 Answers
2498 Consultations

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